Citation Nr: 0115652
Decision Date: 06/06/01 Archive Date: 06/13/01
DOCKET NO. 96-43 623 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to a compensable rating for rheumatoid arthritis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran had over two years and seven months of active
service, including from January 1954 to January 1956.
This matter comes before the Board of Veterans' Appeals
(Board) for appellate review following a February 1995 rating
determination by the Houston, Texas, Regional Office (RO) of
the Department of Veterans Affairs (VA) that denied service
connection for an eye disorder and a compensable disability
rating for rheumatoid arthritis. This case was previously
before the Board in August 2000 at which time the issue of
entitlement to service connection for an eye disorder was
denied as not well grounded and the issue of a compensable
rating for rheumatoid arthritis was remanded for additional
development, including a VA examination. The RO attempted to
complete all requested development, and the case has been
presented for Board review at this time.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act (VCAA) of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well-grounded claim and
supersedes the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order). As noted
above, the issue of service connection for an eye disorder
was denied by the Board as not well grounded in August 2000.
However, the veteran and his representative are hereby
advised that such claim may be readjudicated in accordance
with the VCAA. Therefore, this matter is referred to the RO
for appropriate action.
FINDING OF FACT
The veteran chose to cancel his VA examination that was
scheduled in December 2000 for evaluation of his service-
connected rheumatoid arthritis.
CONCLUSION OF LAW
Entitlement to a compensable rating for rheumatoid arthritis
is denied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 3.655 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A review of the veteran's file shows that service connection
for rheumatoid arthritis, multiple joints, inactive, was
granted in a rating decision dated in April 1956. The rating
assigned at that time was 0 percent (noncompensable). In
October 1993, the veteran sought an increased rating for this
arthritis.
When entitlement to a benefit cannot be established or
confirmed without a current VA examination and a claimant,
without good cause, fails to report for such examination,
action shall be taken. Examples of good cause include, but
are not limited to, the illness or hospitalization of the
claimant, death of an immediate family member, etc. When the
examination was scheduled in conjunction with an original
claim other than a compensation claim, a reopened claim for a
benefit which was previously disallowed, or a claim for
increase, the claim shall be denied. 38 C.F.R. § 3.655(a)(b)
(2000).
In August 2000, the veteran's case was remanded by the Board
for, inter alia, a VA examination in order to determine the
current severity of the service-connected arthritis. In
compliance with the remand, a VA examination was scheduled in
December 2000. The record indicates that the veteran
canceled that examination. In a January 2001 supplemental
statement of the case, the RO informed the veteran of the
importance of the scheduled VA examination and offered the
veteran the option of attending another examination if he so
desired. In an April 2001 letter, the veteran pointed out
that he had deliberately canceled this examination.
In the case at hand, the record indicates that the veteran
chose to not report for the VA examination that was scheduled
by the RO in compliance with the Board's remand and he was
aware of the result of this action. See Dusek v. Derwinski,
2 Vet. App. 519 (1992); 38 C.F.R. § 3.326. Therefore, the
Board is required by pertinent regulation to deny the instant
claim. 38 C.F.R. § 3.655. The procedural prerequisites have
been fully satisfied by the RO's communications. Therefore,
the appeal is denied.
In his April 2001 letter, the veteran indicated that he may
desire to again pursue an increased rating claim sometime in
the future. The veteran is free to reopen a claim at any
time by contacting the RO.
ORDER
A compensable rating for rheumatoid arthritis is denied.
M. SABULSKY
Member, Board of Veterans' Appeals